Resume

If you’re not an attorney, credentials be confusing. Here’s why I think my education and experience qualify me to handle your appeal or support you with complex issues at trial:

1) Vanderbilt University Law School is ranked #16 in the nation. Getting in is competitive; getting out alive is a killer. The two best schools in Florida (UF and FSU, of course) are ranked around 48-50. In my experience the best lawyers from any school are great, but the rankings do mean something.

3) For five years, I worked for federal judges in extremely demanding federal judicial clerkships. At the trial level and on appeal, my job was to look at both sides, figure out who was right, and draft the opinion for my bosses. Not only did I get to hang around the smartest, most accomplished jurists, I got to learn how judges make decisions, and see what works and what doesn’t. Hint: many attorneys are wrong about what’s actually persuasive to a judge.

4) I worked in federal courts responsible for six states. Each state system is different, but each is subject to the Constitution of the United States and other federal laws. Now that I practice primarily in Florida, I use my experience to go beyond what the law is now, and argue what it should be, based on good ideas from other jurisdictions. I also have a good sense of when states are ignoring federal law.

5) My work in criminal procedure has been recognized by Bloomberg’s Bureau of National Affairs, for whom I sit on the advisory board of the Criminal Law Reporter.

6) I continue to publish articles on cutting edge issues several times each year.

7) Last, but certainly not least, I’ve been fortunate enough to work closely with Fox and Loquasto, P.A., a prestige boutique appellate firm with which I enjoy an “of counsel” relationship. Susan Fox in the Orlando office has been an invaluable source of wisdom.

Look, bragging is not my favorite thing to do. I find it distasteful. As you make your decision, I advise you to obtain credentials from everyone you consider and compare them.

If you’re looking for an attorney, I urge you to find one you’re comfortable with. There are other very good attorneys out there, and if I’m not right for you I’ll try to get you to someone else you can trust. You can visit the web site of the Florida Bar to view an attorney’s profile, including their disciplinary history and board certification information.

The April 2014 guidelines changes WILL be applied retroactively, which means that many federal defendants will be eligible for a sentence reduction soon!

The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.

The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward. Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015. Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.

“This amendment received unanimous support from Commissioners because it is a measured approach,” said Judge Patti B. Saris, chair of the Commission. “It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.

In Lugo v. Sec’y, Dept. of Corr., the Eleventh Circuit had a lot to say about the attorneys Florida appoints for postconviction review in capital cases. According to its analysis, fully 8% of capital defendants in Florida filed Section 2254 petitions (federal habeas corpus) after the statute of limitations expired!

In Lugo’s case, his appointed attorney also extorted money from him before eventually filing his state postconviction motion 12 days after the 1-year federal limitations expired. (The state motion was timely because there is a two-year limitations period for state PCR motions). Thus, the state motion did not stop the federal statute of limitations from running (that is, “toll” the statute of limitations) because the time had already expired.

The Southern District of Florida has granted an evidentiary hearing to my client Franz Rigg. Fewer than .4% of all federal habeas cases filed result in an evidentiary hearing according to the study by Nancy King of Vanderbilt, whom I was fortunate enough to have the oppportunity to work for (see page 36 here: https://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf). I commend the Southern District for its willingness to give Mr. Rigg his day in court.

In Boaz v. State, the 5th DCA reversed on the trial court’s failure to conduct a Nelson hearing (to establish grounds to discharge and replace counsel after deficient performance); failure to hold hearing was error where defendant had alleged specific instances of deficient error, and “open and voluntary” nature of guilty plea could not render error harmless. http://www.5dca.org/Opinions/Opin2014/032414/5D12-4485.op.pdf

Note Sean Wagner’s interesting commentary on exploiting the Nelson/Faretta procedures to replace counsel even though counsel’s performance was not deficient here: http://floridacriminaldefenselawyer.blogspot.com/2011/08/you-aint-working-in-my-best-interest.html

In Bainter v. State, the 5th DCA reversed the denial of a motion to suppress, finding that the defendant’s subjective reasonable expectation of privacy gave 4th Amendment right to not have police enter fenced property posted with “No Trespassing” signs through open gate. http://www.5dca.org/Opinions/Opin2014/032414/5D13-602.op.pdf

In Collins v. State, the 5th reversed based on prosecutorial misconduct during closing argument. Although counsel did not object at trial, the unsupported assertion that the defendant had pressured the victim to testify favorably rose to the level of fundamental error, and warranted reversal despite counsel’s failure to preserve the error. http://www.5dca.org/Opinions/Opin2014/032414/5D13-637%20op.pdf

Pro se appellant Jason Scott Downs won a nice procedural victory for postconviction review. The 5th DCA found that a recent amendment to Rule 3.850 (here, the two-year limitations period added June 30, 2011) did not apply retroactively, but only began to run on the effective date ; thus, Mr. Downs’s petition challenging his 2001 conviction was timely filed because the limitations period began to run on June 30, 2011, not the date of his conviction and sentence. http://www.5dca.org/Opinions/Opin2014/032414/5D13-2600.op.pdf

In Heilman, the 5th DCA held that, as a matter of statutory interpretation, a corrections officer was entitled to assert the stand-your-ground defense with respect to an assault charge based on an altercation with an inmate. Note that, because stand your ground is a defense to prosecution rather than merely liability, review here came on a writ of prohibition directly from the pretrial order denying the defendant’s defense. http://www.5dca.org/Opinions/Opin2014/032414/5D13-3940.op.pdf

In Medina, the 5th DCA reversed a summary denial of a Rule 3.801 motion for jail credit because the trial court did not give Mr. Medina an opportunity to amend the facially insufficient motion. http://www.5dca.org/Opinions/Opin2014/032414/5D13-4140.op.pdf

In Mann v. State, the 5th reversed on a jury instruction issue where the state did not establish harmlessness of erroneous instructions. Here, where the defendant was charged with stabbing the victim and the victim contended that the defendant had attacked his wife’s cat, the court erred by giving a jury instruction on whether victim’s use of force was justified and thereby creating an improper presumption that the victim was provoked. Victim was not on trial, rendering his right to use force irrevelvant; moreover, other jury instructions adequately conveyed limits on defendant’s invocation of the right to self defense. http://www.5dca.org/Opinions/Opin2014/031714/5D12-1478.op.pdf

In Melendez v. State, the 5th vacated two of defendant’s three convictions. The conviction for grand theft was dismissed on double jeopardy grounds owing to the conviction for trafficking in stolen goods; because the objection had not been raised at trial, the lesser conviction (3d degree felony grand theft) was vacated. A robbery conviction was also vacated where trial court permitted the prosecution to exceed the necessary scope of cross-examination and present testimony from detectives regarding confession of non-testifying co-defendant; the error was not harmless based on the “circumstantial and not compelling” nature of the other evidence.

In Moore v. State of Florida, up on certiorari review of the trial court’s order denying a motion to depose members of a Child Protection Team, success was achieved despite dismissal of the petition. The issue here is the unofficial practice of the Ninth Circuit in requiring a court order for discovery from the Department of Children and Families due to the confidentiality concerns. Observing that no such requirement existed in the law, the 5th DCA held that the defendant nevertheless had not established uncurable prejudice because the trial court had not issued a final order denying the discovery. The 5th did, however, strongly encourage the lower court to reconsider its position that written interrogatories should be submitted along with such a motion, or in the alternative grant the motion for deposition after reviewing the interrogatories. http://www.5dca.org/Opinions/Opin2014/031714/5D13-2555.op.pdf

In the unfavorable decision Hampton v. State, the 5th receded from its earlier holding in Davis v. State, 95 So. 3d 340 (Fla. 5th DCA 2012) (holding that conviction for conspiracy to traffic in drugs required proof that the conspirators intended to commit the same act specific illegal act, precluding liability for a single buy-sell transaction). The Court explained that the cases it relied on in Davis related to charges for conspiracy to purchase, not the alternative-conduct charge of trafficking. Thus, a single buy-sell transaction established a mutual conspiracy to traffic drugs. http://www.5dca.org/Opinions/Opin2014/031014/5D12-2115.op.pdf

The Defendant in Simplice v. State was able to obtain resentencing before a different judge where the original judge participated in plea discussions, offering a 15.25 year term; upon defendant’s conviction at trial, the judge imposed a total sentence of 40 years. This 262% increase (which was not explained by the court) created a presumption of vindictiveness which the state had failed to rebut. Because vindictiveness is a fundamental error, trial counsel’s failure to raise the issue did not forfeit appellate review. http://www.5dca.org/Opinions/Opin2014/031014/5D12-4371.op.pdf

The 5th reversed on double jeopardy grounds convictions for kidnapping and false imprisonment committed during the same criminal episode in Jones v. State. http://www.5dca.org/Opinions/Opin2014/030314/5D13-30.op.pdf

In Wahid v. State, the 5th reversed a forfeiture award with respect to certain vehicles, holding that forfeiture was not appropriate because (1) property connected to or derived from proceeds of violations of gambling laws was not necessarily forfeitable; and, (2) the state had not shown that the vehicles were used as instrumentalities in the commission of a felony. http://www.5dca.org/Opinions/Opin2014/030314/5D13-1670.op.pdf

In Pylant v. State, the 5th reversed a summary denial of a 3.850 motion; the trial court should have held a hearing on the issue of whether counsel affirmatively misadvised defendant that, on sentence for violation of parole, the DOC would give credit for 547 days of gain time. The acknowledgment at a plea colloquy that no promises have been made is insufficient to conclusively rebut a claim of affirmative misadvice. http://www.5dca.org/Opinions/Opin2014/030314/5D13-3835.op.pdf

In Dawes v. State, the 5th affirmed the denial of a motion to dismiss based on failure to timely charge a defendant under the Interstate Agreement on Detainers Act (IADA); defendant’s one-year Massachustts sentence, served in a county jail, was not a “penal or correctional institution” under the Act, rendering the 180-day period in the Act inapplicable. http://www.5dca.org/Opinions/Opin2014/022414/5D12-3239.op.pdf

In Reidy v. State, the 5th remanded a 3.850 motion for further proceedings after summary dismissal of claim that attorney incorrectly informed petitioner that he would lose advantage of first and last closing argument if he testified (under the law at the time, defendants were entitled to first and last closing argument unless they presented evidence other than their own testimony) and that his trial attorney committed ineffective assistance by opening the door to otherwise inadmissible hearsay statements. http://www.5dca.org/Opinions/Opin2014/022414/5D13-154.op.pdf

In Potts v. State, the 5th held that the lower court erred in revoking probation when, after the initial sentence was pronounced, it added a requirement that defendant complete a drug program, then revoked probation on the illegally added condition. http://www.5dca.org/Opinions/Opin2014/022414/5D13-308.op.pdf

In Barker v. State, a writ of habeas corpus was granted and the 5th ordered the immediate release of a prisoner who had been sentenced to a probationary split sentence but did not receive credit for incarceration on the initial sentence; "A defendant sentenced to a probationary split sentence who violates probation and
is resentenced to prison is entitled to credit for all time actually served in prison prior to
his release on probation unless such credit is waived. Mann v. State, 109 So. 3d 1202,
1203 (Fla. 5th DCA 2013)"

First, cases and filings have been updated - check the “legal resources” page. New filings include a motion for a certificate of appealability to the Eleventh Circuit and a Rule 3.850 motion.

Second, I am part of the team updating the criminal appeals and postconviction chapters of the Appellate Practice Section’s Pro Se handbook. This extremely rewarding work will hopefully prove a useful resource to anyone trying to get a handle on the procedural issues they face.

Third, I have been researching the issue of “unbundled” legal services across the country. “Unbundled” simply means that the attorney provides some level of service short of full representation. Examples include consultations, research and writing assistance, obtaining documents, and even ghost-writing filings. Many of my clients either do not have the funds to pay for full representation or do not need or want full representation. Florida allows this practice (see here), but other jurisdictions differ. To me, attorneys have got to have the power to shape their representation to the resources of their clients. This is especially important in the context of postconviction review, where defendants generally lack any income but need help to bring their claims.

Fourth, there have been so many new developments in prisoner’s rights, federal sentencing issues, and Florida criminal law to watch. I generally do not post links to specific articles (if I did that, I would have to blog every day!), but there are a few that I want to share, in no particular order:

Christmas came a day early for anyone whose enhancement would not have been legal under Begay.

On December 24,
2013, the United States Court of Appeals for the Eleventh Circuit
decided Bryant v. Warden, FCC Coleman. Mr. Bryant had
challenged his enhanced sentence on the basis that his state-court
coviction for illegally carrying a concealed firearm was not a
violent felony for the purposes of 18 U.S.C. S 924(e). Until the
Supreme Court decided Begay v.
United States1
in 2008, the Eleventh Circuit’s controlling precedent
foreclosed Mr. Bryant’s claim. At that point, due to the age of
his federal conviction, and the fact that he had already filed a
postconviction motion, Mr. Bryant could not proceed under 28 U.S.C. S
2255. He therefore invoked 28 U.S.C. 2241, arguing that Section 2255
was not adequate to test his continued detention. Reversing the
district court, the Eleventh Circuit held that Mr. Bryant’s claims
could proceed, and granted relief.

Although its
holding is limited to sentences over the statutory maximum and does
not extend to Guidelines error, the Eleventh Circuit’s decision is
important because the circuits have split on whether Section 2241 is
available to challenge a sentence, or is limited to convictions for
acts that are no longer criminal. However, because Section 2241
convictions are filed in the district of incarceration (rather than
the district of conviction), Bryant’s availability depends
on whether the defendant is incarcerated in Florida, Georgia, or
Alabama.

Bottom line: if you're in the Eleventh Circuit, and an enhancement would not be legal under Begay but controlling circuit precedent before Begay established that the enhancement applied, you need to file a 2241.

UPDATE: My article on this topic from the BNA/Bloomberg Criminal Law Reporter is available here.

November (and October) have been busy months. The most significant filings from my office lately have been:

Belated motion for postconviction relief - Brought on by a subsequent conviction, the purpose of this motion is to overturn the convictions that made the client eligible for a prison releasee reoffender (PRR) sentence. The record revealed serious problems with the way the case was transferred from juvenile court to circuit court.

Rule 9.141 motion/Habeas Petition - Another belated effort, this motion focuses on the nonexistent crime of which Mark Kohut was convicted and on the ambiguity of the jury verdict with regard to whether he personally used a weapon, as required to enhance a conviction under 775.087, Fla. Stat.

I'm also very pleased to announce the publication of "Attacking Aggravating Prior Convictions in Federal Habeas: Using Lackawanna and Daniels for . . . Practically Anything?" in next week's Bloomberg/BNA Criminal Law Reporter. I hope to have an opportunity to challenge prior aggravating convictions used to enhance a subsequent sentence in the near future, and hopefully the idea will prove useful to someone else as well. Bottom line: if you didn't have postconviction counsel for your Rule 3.850 motion, your rule 3.800 motion, or your federal habeas proceedings (or Section 2255 proceedings for federal defendants), those convictions might be susceptible to challenge when used to enhence a subsequent sentence.